How the Supreme Court Learned to Stop Worrying and Love Guns

As we discussed last time, the Supreme Court’s latest gun decision in the case known as McDonald v. The City of Chicago, decided that the Second Amendment applies to the states as well as the federal government. Remember that two years ago – for the first time in the Nation’s history – the Court decided that the Amendment guaranteed an individual’s right to keep and bear arms, even though that individual never wore the uniform, never served his country under arms, and was never in the militia.(Or even the Texas Rangers.)

For the last two years the federal government has had no right to prevent you from keeping guns in your home. Now no state government can prevent it either.

Of course, before the ruling, most states already had their own constitutional provisions that protected your right, but now even if the citizens of your state voted to outlaw guns in your home, the Supreme Court would strike down that democratic decision.

Not that any such thing is likely to happen anytime soon. About 80% of Americans currently believe that we have a right to have guns in our homes.

So the federal Second Amendment now applies to the states and their towns and cities. The state of Illinois cannot stop its citizens from keeping guns in their homes, therefore, neither can Chicago, a political subdivision of Illinois.

But why? Why is the Second Amendment incorporated against the states?

Citizens Bearing Arms - Daniel Boone and Mingo

The answer demonstrates, as clearly and cleanly as Euclid could have, that the current Supreme Court is an activist court, at least when the five most conservative justices emotionally involve themselves in the outcome of a case.

Here’s why. Although the Court mustered a majority vote to apply the Second Amendment to the states, it did not muster a majority explanation of why. Of the two possible reasons to apply the Amendment to the states, both lost. One lost five to four and the other lost eight to one. Chicago should have won.

But five justices wanted a particular outcome and they voted for that outcome, even though they could not agree why.

“But wait,” I hear you say, “that’s not how it’s supposed to work.” And you are right. According to Chief Justice Roberts, judges are just umpires, calling balls and strikes, based upon their careful analysis of the law. They don’t care about how a case turns out, only about the legal reasons that require a result.

Balderdash.

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In the next post we’ll explain how Chicago lost this case. We’ll look at the most interesting of all the opinions in the case, that of Justice Thomas. We’ll call the post, “The Privileges and Immunities of United States Citizenship or How the Supreme Court learned to Stop Worrying and Love Beef!”

In meantime, here -with sound- is the opening theme of the 1950s television show, “The Texas Rangers.”

One Response to “How the Supreme Court Learned to Stop Worrying and Love Guns”

Anyone who reads the entire 27 words can see that the Second Amendment addresses the perceived need for a well regulated militia. The words say nothing either for against the use of arms in individual self-defense, hunting, or attacks against government. Those concepts were imagined into the amendment by powerful gun interests and by those who firmly believe that it is only right that “the guys with the guns make the rules.”

In the exclusively militia context of the Second Amendment, the term “bear arms” means “provide militia service,” not “carry arms in case of confrontation.” In 1789, well regulated militias were drawn from those who met the physical and age requirements for militia service under state law. Such militia-capable persons were said to be “capable of bearing arms.” Eight-year-old children and 88-year-old adults can often carry arms of some sort, but they were never considered capable of “bearing arms” in the militia sense.

When immigrants take the United States Oath of Allegiance on becoming citizens, they swear “that I will bear arms on behalf of the United States when required by the law.” I think it’s safe to bet that those new citizens do not think they have simply agreed to carry guns around.